Your Right to Silence

Posted on 23 April 2013

Previously, in our blog on 17 September 2012, we discussed the NSW Government’s plan to introduce new evidence laws that would potentially undermine the legal principle of "the right to silence". The amendments to the Evidence Act announced by Premier O'Farrell were designed to curtail incidences where organised crime gangs hide behind the right to silence. The proposed amendments were endorsed to allow juries to make an adverse finding against alleged criminals refusing to cooperate with investigating police but who later produce “evidence” at trial.

At the time the NSW Law Society raised severe concerns over the government's decision to amend the Evidence Act without consulting relevant stakeholders in the criminal justice field or with the people of NSW. Then President Justin Dowd stated that the news laws would not affect career criminals but most likely affect:

"those that are charged for the first time, those who are nervous or panicked, those who have a disability, language difficulties or other disadvantages".

In addition, he raised doubts about whether the new laws will actually assist police as they will only apply where a person is actually charged with an offence and not in cases where the "code of silence" practice by organised crime gangs and their affiliates applies, which is a completely different issue to the right to remain silent.

On 25 March 2013, the NSW Parliament assented the Evidence Amendment (Evidence of Silence) Bill 2013 into law. Attorney-General Mr Greg Smith SC has reaffirmed the government’s stance that the new laws are designed to allow juries to draw adverse inferences in certain circumstances where a person accused of a serious indictable crime seeks to raise a fact at trial they did not disclose during a police interview. The government has highlighted a European Court of Human Rights ruling, which found similar laws in the United Kingdom to be consistent with the right to fair trail, as justification for the new laws.
However, the NSW Law Society has criticised the new laws maintaining that they will lead to more costs and delays without increasing convictions. Current Law Society President, Mr John Dobson, has declared that removing the fundamental right to silence for people when they are arrested will increase the length and complexity of trials with the potential for the Courts to be bogged down by unnecessary legal proceedings due to an increase in the amount of appeals by those who have been convicted.

In addition, Mr Dobson argues that the NSW laws now go well beyond the provisions on which they are based on in the United Kingdom and effectively shifts the onus of proof onto the defendant to mention a fact, even in circumstances where the police have not even asked questions about it in an interview.

Dooley & Associates are disappointed by Parliament's decision to assent Evidence Amendment (Evidence of Silence) Bill 2013 and we reiterate our full support of the NSW Law Society’s position on the new laws. We believe the new laws will, in practice, fail to curb Serious Organised Crime and only succeed in undermining the civil rights of the people of NSW; and more often than not affect only the most vulnerable members of our society.